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Should the law of divorce be reformed

The present divorce law (Matrimonial Causes Act 1973) is unsatisfactory. Although it appears to retain some fault grounds, it is in reality ‘no fault’ divorce; but also with much bitterness involved. It is quick and impersonal, and gives insufficient attention to the children.’ Is this a fair reflection of the current law?

The present divorce law is governed by the Matrimonial Causes Act 1973. This work will consider whether this law is unsatisfactory and should be considered a ‘no fault’ divorce with much bitterness inherent in the process; and whether the speed, impersonality and insufficient attention to children is a reflection of the current law. In order to do this, it will examine the aims of the law, and the grounds for divorce, both in terms of speed and fault.

The Aims of the Law

For the sake of clarity, it must be noted that the Family Law Act 1996 aimed to reform the divorce law as contained in the Matrimonial Causes Act 1973. However, the divorce reforms in the FLA were not, and now will not, be implemented. Despite this, it seems that the aims of the law contained in the FLA are still supported at government level and thus, these aims will be considered throughout this work.

Grounds for Divorce: A Quick Process?

It has been suggested that the nature of marriage has changed so that, rather than choosing to marry as a symbol of lifelong commitment to their partner even through difficult times, many individuals expect constant fulfilment from their marriage and will seek to exit from that marriage when such goals are no longer being met. This appears somewhat contrary to the assertion that the law should aim to encourage parties to remain married and thus one may expect the divorce law to be a slow and a rather arduous procedure. Although there is only one ground for divorce under the MCA, namely that the marriage has broken down irretrievably, this ground must be demonstrated by proof of one of the five facts listed in section 1(2). These facts are that the respondent has committed adultery; behaved so unreasonably so that the petitioner cannot be expected to live with them; deserted the petitioner for a period of more than two years; two years separation with agreement to the divorce from the respondent; or five years separation. It is therefore clear that as a simple matter of fact, the final three facts here cannot lead to a quick divorce, at least not from the time of separation.

However, it has been suggested in reality, because parties are unlikely to seek legal advice and initiate divorce proceedings until saving the relationship is no longer possible, the time periods specified in the final three facts are not likely to cause any significant delay from the time the petitioner initiates proceedings.

Further, subject to the requirement that the parties have been married for at least a year, there is nothing to prevent the petitioner from using either of the first two facts to prove grounds for divorce, thus enabling a quick divorce to be obtained. The first two facts contain a requirement of fault. Of course, whether adultery has in fact occurred and is able to be proven may be a bar here and thus, the petitioner may be forced to rely on the second fact, where all that needs to be shown is that the respondent has behaved in a manner which renders it unreasonable for the petitioner to live with them.

This is to be distinguished from objective unreasonableness and has even been held to encompass such apparently trivial behaviour as taking a rather long time to complete DIY projects. The Law Commission have asserted that as a result of this, “virtually any spouse can assemble a list of events which, taken out of context, can be presented as unreasonable behaviour sufficient to found a divorce petition”. It is therefore submitted that in reality, the availability of a quick divorce is easy as parties are able to avoid needing to rely on the grounds for divorce, which require certain time periods to elapse. This of course also has the effect that in reality the law is fault-based as the no-fault grounds are framed in terms of lengthy time periods.

The issue of fault will be discussed further below, but it should be observed that due to the reasons outlined above about the changing nature of marriage in society, it is argued that this aspect of the law should be maintained, in terms of its speed. Indeed, as it has been shown that parties will not seek divorce until the marriage is no longer reparable, it is further submitted that delay in obtaining a divorce at this stage is unjustifiable and does not require reform. This should be distinguished from reform of the content of the grounds for divorce however, which it will be shown below, cannot be justified.

It is perhaps due to the fact that the legislature appears to favour marriage that the FLA sought to introduce a requirement of a three-month gap between an information meeting, which would require parties to reconsider their marriage, and the making of a final statement to confirm that the marriage had indeed broken down. Given that it has been shown above that the speed of the fault-grounds is perhaps the only desirable aspect of the current law, one cannot support these reforms and it is submitted that it is fortunate that the FLA, at least in this respect, was abandoned.

Of course it is true that the information meeting could have had the effect that parties would discuss the breakdown of their marriage and reduce bitterness as the grounds for divorce could be agreed, rather than enforced upon the other party as has been shown to be the case with the current law. It is thus suggested that reform in this sense may be beneficial, although one must be careful to distinguish mediation and agreement of the grounds for divorce rather than potential grounds for reconciliation which again, have been shown above to be futile by the time parties have initiated proceedings. It is submitted that this may also serve to ensure that divorce is personal, although the fact that parties using the fault grounds are forced to do this upon personal circumstances, whether or not they are reflective of reality, already means that the divorce law is personal to some extent and thus in this sense, one cannot agree with the title quote that the law is impersonal.

This type of personalisation is of course different to individual divorce which has been supported in jurisdictions such as the United States and allows parties to choose a model of divorce most suited to their needs, rather than needing to manipulate circumstances in order to fit one of the current fault-based, although quick, grounds for divorce.

Grounds for Divorce: Bitterness and Fault

As recognised in section 1(c)(i) FLA, the divorce law should operate with “minimum distress to the parties” and thus not increase bitterness in what is likely to be an already emotionally volatile situation. However, as Herring observes, the current law does not aim to “remove” the bitterness from the relationship between separating spouses; it only aims not to “exacerbate” it, and thus one may be inclined towards the conclusion that bitterness is an inherent part of the divorce law, which the law will never be able to remove and should not seek to do so.

Here, it should be observed that it is clear from the lack of opportunity for a divorce to be defended that the current law may increase bitterness between the parties. The overwhelming majority of divorces are undefended and this may be due to the “futility” of defending the grounds for a divorce case, which is still likely to result in the parties being divorced, although on potentially different grounds but at a hugely increased cost. It therefore seems that the position is that the petitioner has the upper hand, with the respondent almost forced to accept the grounds on which they are petitioned. This problem may be exacerbated by the fact that legal aid is not available for petitioned divorces, although it is available for mediation in some circumstances.

It was observed above that parties are able to avoid the potential time bars to some of the facts for divorce, by simply citing unreasonable behaviour, the most common fact cited in divorce cases. Although it was argued that this is beneficial in terms of enabling parties to obtain a divorce quickly when there is no prospect of a reconciliation, it will now be shown that the content of these facts is problematic and requires reform. As Herring observes, a petitioner must cite one of the facts in order to prove that there is grounds for divorce, but in reality, these facts may not be the true reason that the marriage broke down. Indeed, in this sense, it is argued that although there may be situations in which the breakdown of a marriage is the fault of neither party, the law cannot be considered to be a ‘no-fault’ one.

Of course, if a party does not wish to divorce quickly, it is possible that they employ one of the no-fault grounds. However, it is rather confusing that the law requires parties to wait only if they cannot prove fault. Given that it has been shown above that factual fault is very different to fault for the purposes of showing unreasonable behaviour, it seems that the law penalises those who are unable to show or indeed manipulate circumstances in order to show such fault. The no-fault grounds for divorce thus seem to be unjustifiable; although the basis of the law cannot be considered no-fault as these grounds are rarely used, where they are, it is clear that bitterness may arise.

Of course, it is also true that requiring parties to fabricate or manipulate events to show unreasonable behaviour, when in fact there has been no real fault on the part of either party, is also likely to lead to bitterness on the part of the respondent who may feel that they are being forced to take the blame for a situation for which neither party was at fault. The fact that these facts are the most commonly used demonstrates that the law is certainly not no-fault in reality and thus once again, the title quote cannot be accepted. Thus, it is clear that the law is indeed problematic in this sense and should be reformed so that the speed of the fault grounds is retained, whilst the encouraged bitterness in all the grounds is removed.

Of course, one must exercise a note of caution here. Some commentators have observed that allowing the parties to divorce on the basis of the fault of their spouse is cathartic and indeed “the norm” when parties are divorcing and some bitterness should be expected. This may be true, but it is submitted that there is a vast difference between failing to feel that a party truly at fault has “paid” for this fault, and creating fault and increased bitterness simply to obtain a quick divorce, the apparent position under the current law.

The Position of Children

The law has also been criticised for failing to give enough consideration to children. This problem may be heightened by the fact that the only legislative provision which applies to children of divorcing spouses is that the court must consider whether there are any children affected by the divorce in terms of which it should consider using any of the provisions in the Children Act 1989.

Whilst at first glance this may appear logical and indeed, one is inclined to lean towards the view that in the absence of evidence to the contrary, parents should be trusted to make decisions about their children and such a right such not be affected by the mere fact that spouses are divorcing. The problem however is that the fact that spouses have produced a statement of arrangements concerning the children may not be indicative of the fact that those children have been consulted where appropriate or that their needs have been fully considered. Indeed, research has shown that only 34% of parents discuss divorce arrangements with their children. Further, changes to the law in the form of the Children and Families Act 2014 may provide clarity in terms of orders relating to contact with each spouse, but it has been observed that the Act will have little effect unless there is a dispute about contact.

Conclusion

It is clear that the current law does not give enough consideration to the needs of children. Although reliance on the fault-grounds does often result in a quick divorce and a system which is not no-fault in reality, the system does have a tendency to increase bitterness between the parties. Although the law is personal in the sense that the behaviour of the parties is often cited in the facts of the divorce when unreasonable behaviour is cited, the model of divorce is the same for all parties and in any case, the behaviour of the parties is often manipulated to allow the petitioner to obtain a quick divorce. Whilst it has been shown that a quick divorce is of itself representative of the needs of society, the fact that this must be obtained through such a convoluted system demonstrates that reform of the law is needed.

Shaw Spaht K, ‘Louisiana’s Covenant Marriage Law’, in A Dnes and R Rowthorn (eds) The Law and Economics of Marriage and Divorce (Cambridge University Press 2002) 92-117

Richards M, ‘Divorcing Children: Roles for Parents and the State’ in M Maclean and J Kurczewski (eds), Families, Politics and the Law: Perspectives for East and West Europe (Clarendon Press 1994) 305-321

M Richards, ‘Divorcing Children: Roles for Parents and the State’ in M Maclean and J Kurczewski (eds), Families, Politics and the Law: Perspectives for East and West Europe (Clarendon Press 1994) 305-321, 312